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en-usTechdirt. Stories filed under "music"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Fri, 28 Oct 2016 14:36:23 PDTHuge Casino Threatens Small Blues Club For Using The Word 'Live' In Its NameTimothy Geignerhttps://www.techdirt.com/articles/20161026/06423735889/huge-casino-threatens-small-blues-club-using-word-live-name.shtml
https://www.techdirt.com/articles/20161026/06423735889/huge-casino-threatens-small-blues-club-using-word-live-name.shtml
When I drop dead of a massive heart attack, it will be because some huge company has bullied some small company over a ridiculous trademark that never should have been granted in the first place. The examples for this sort of thing are legion around Techdirt, but it still gets me every single time. The Trademark Office has done such a poor job of turning even the barest of critical eyes towards trademark applications that all sorts of short and common words have been granted trademarks all over the place, including in industries where it was plainly insane to grant them at all.

The latest of these concerns a small family-owned supper club in Maryland and the threat letter it received from an enormous casino company over the trademark it had somehow received on the word "live."

The Bethesda Blues and Jazz Supper Club in the 7700 block of Wisconsin Avenue was opened four years ago by owner Rick Brown. He envisioned a grand supper club on the scale of the famous Copacabana nightclub and wanted to preserve a landmark that had personal meaning to him and his family. After more than 900 concerts and 240,000 customers over four years, he decided to change the name of the business to Bethesda Live, attempting to attract a wider audience and let people know they have more than just blues and jazz acts.

Within days of announcing the name change, Brown got a letter from an attorney representing Maryland Live! Casino, ordering Brown to cease and desist with the name change and threatening legal action if he continued. The letter said, “Live! Holdings, LLC is the owner of the registered trademark ‘Live!’ and we are writing to object to your company’s contemplated use of ‘Bethesda Live’ in connection with an entertainment facility in Bethesda, Maryland.”

Yes, Maryland Live! Casino is asserting it has a trademark on the word "live" for use in the entertainment market. Put yourself in the chair of someone at the Trademark Office, if you can. You see an application for the word "live" to be used in the entertainment market. If you can picture yourself taking any course of action other than laughing maniacally as you light the application on fire, then it appears you're just the sort of person the USPTO is hiring, so go send in your resume. The rest of us will be facepalming over here, because that's not just a common word generally, but a word so common in the entertainment industry as to be downright ubiquitous.

And, yet, pretty much everyone agrees that if the casino wishes to move this dispute to a courtroom, the small supper club in Bethesda is completely boned.

Brown’s lawyer, Chris Foley, a trademark lawyer and partner at Finnegan Law, said the casino is overreaching. However, he said his client could be wiped out financially if he tried to fight the order.

“Oh, it’s trademark bullying.” Foley said. “I think we’re dealing with a David and Goliath (situation) that could cost hundreds of thousands of dollars easily and that’s not fair to him.”

“It is unfair,” Brown said. “Even if we were to fight a lawsuit, it would be very expensive. We just don’t have those resources.”

Trademark bullying occurs because it works. Brown has said he's reached out to the casino to plead that something be worked out, but the casino can't seem to find a way to let a blues supper club use the word "live." In a just world, this kind of bullying would result in the casino losing this overly-broad and common trademark entirely. Sadly, this world is often not quite so just as that.

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]]>deadhttps://www.techdirt.com/comment_rss.php?sid=20161026/06423735889Fri, 23 Sep 2016 09:46:36 PDTMacedonia Copyright Collection Group Forces All Macedonian Music Off Of All Macedonian BroadcastsTimothy Geignerhttps://www.techdirt.com/articles/20160921/09435335585/macedonia-copyright-collection-group-forces-all-macedonian-music-off-all-macedonian-broadcasts.shtml
https://www.techdirt.com/articles/20160921/09435335585/macedonia-copyright-collection-group-forces-all-macedonian-music-off-all-macedonian-broadcasts.shtml
This is a strange one, for sure. Often times when we discuss disputes from copyright licensing or collection groups, which will universally complain that they are not collecting enough money when given any opportunity, some will comment that the artists should just pull their music from all broadcasts if they're not happy with the arrangement. This kind of nuclear option is rarely, if ever, invoked for a whole host of reasons that include compulsory licensing arrangements and rules, the sincerity of the complaints from the licensing groups, and the simple business interests behind the benefits of having music heard on the radio.

But in Macedonia, one such licensing group has quite literally taken its musical ball and stomped home. This whole spat has been initiated by ZAMP, previously the sole music copyright collection organization in all of Macedonia, all because a second collection group has been started in the country, alongside more strict rules governing how much money ZAMP can collect for the artists it represents. As a result, ZAMP has informed Macedonia's broadcasters that they are henceforth banned from playing any music created by Macedonian artists, whom ZAMP claims to represent.

The ban came after the culture ministry gave a licence to the newly-formed SOKOM MAP association to collect songwriters’ and performers’ fees from TV and radio broadcasters.

“Their goal is to divide the authors and to put a hand on the money collected by ZAMP. Thus the new association, SOKOM MAP, has become an instrument in the culture ministry’s hands,” ZAMP said in a statement.

SOKOM MAP, the new collection group, has insisted that it is not in fact an arm of the Macedonian government, but another collection group representing artists. Based on a frustrating Google translation of SOKOM MAP's website, it appears to have nothing to do with the government at all, instead being a non-profit group representing songwriters.

Complicating all of this is a law in Macedonia that requires broadcasters to include 40% Macedonian-made music within their music broadcasts. Thus, broadcasters are currently screwed either way: they risk fines from ZAMP if they play Macedonian music, or risk fines from the government if they don't. To give you an idea of just who the broadcasters are afraid of most in this equation, they've pretty much universally bent to the demands of ZAMP.

“As of today, we decided to stop playing Macedonian music. Either way, we risk legal repercussions and steep fines,” one editor-in-chief of a regional radio station told BIRN under condition of anonymity.

And so, if you happen to be reading this in Macedonia at the time of this writing, you apparently can't hear any music made within that country on the radio. ZAMP took a dispute over how much money it got to collect as the only collection group in the country and managed to reduce that amount of money to absolutely zero by banning that music from broadcasts entirely. Seems like a recipe for new legislation that will further neuter ZAMP, as one imagines the artists it represents will be screaming bloody murder any moment now.

But, yeah, copyright doesn't hinder culture at all.

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]]>that'll-teach-'emhttps://www.techdirt.com/comment_rss.php?sid=20160921/09435335585Mon, 19 Sep 2016 21:41:50 PDTHow Pirates Shaped The Internet As We Know ItSasha Moss, R Streethttps://www.techdirt.com/articles/20160919/17184435565/how-pirates-shaped-internet-as-we-know-it.shtml
https://www.techdirt.com/articles/20160919/17184435565/how-pirates-shaped-internet-as-we-know-it.shtml
Today is "International Talk like a Pirate Day." While it's a lot of fun to act like a pirate, drink rum and catch up on Errol Flynn movies, piracy is also a serious issue with real economic and legal significance. As electronic devices become an increasingly ubiquitous part of our lives, the content we consume has moved from analog to digital. This has made copying – as well as pirating – increasingly easy and prevalent.

Adding fuel to the flames of this rising "pirate generation" has been the content industry's recalcitrant and often combative attitude toward digital markets. Piracy, and the reactions to it, has had an immense impact on the daily lives of ordinary Americans, shaping their digital experience by determining how they can share, transfer and consume content.

As soon as electronic storage and communication technology was sufficiently developed, digital piracy became accessible. Whether it's a song, movie, video game or other piece of software, you could suddenly reproduce it without having to steal it off a shelf or obtain any specialized machinery to counterfeit it. Additionally, if you wanted to listen to an mp3 of the latest Britney Spears album on your computer, there weren't many lawful options. This led to a surge in online piracy and helped foster a culture of online file-sharing.

The music industry historically has a reputation for being hostile to, or at least slow to embrace, digital markets. Yet there were also some major artists who were early innovators in the space.

Before Spotify or iTunes, there was BowieNet. This music-focused internet service provider launched in July 1998 and gave users 5MB of space to create and share their own websites, content and chat. On BowieNet, according to Ars Technica: "[f]ans could get access to unreleased music, artwork, live chats, first-in-line tickets, backstage access, tickets to private, fan club-only concerts." David Bowie saw the potential to help his fan base access his content and discuss it in a social way in the early days of the internet, before Facebook or Myspace. He remarked at the time: "If I was 19 again, I'd bypass music and go right to the internet."

Bowie wasn't the only early music pioneer of the internet. Prince was also an early unsung hero. In the early 2000s, he created NPG Music Group, later Lotusflow3r. He even won a Webby Lifetime Achievement Award in 2006. Unlike BowieNet, NPG and later Lotusflow3r provided releases of full albums.

As musicians and users were experimenting with new ways to share content on the internet, the United States was working with other World Intellectual Property Organization (WIPO) member countries to create the most comprehensive "digital" update to the Copyright Act. In 1998, President Clinton signed into law the Digital Millennium Copyright Act, which implemented U.S. WIPO treaty obligations, as well as several other significant titles (including the Vessel Hull Design Protection Act – which pirates of the nautical variety might care about). Of particular importance were the sections providing for "safe harbor" (Sec. 512), which protected service providers from infringing content generated by their users, and "anti-circumvention" (Sec. 1201), which was meant to stop pirates from hacking digital rights management (DRM) and similar restriction technologies.

Unfortunately, while the system worked when isolated incidents of infringement occurred on largely static web pages—as was the case when the law was passed in 1998—it is largely useless in the current world where illegal links that are taken down reappear instantaneously. The result is a never-ending game that is both costly and increasingly pointless.

While lawmakers were hard at work trying to find ways to quell online piracy, the courts weren't taking a nap. Indeed, going back to the 1980s, there were important judicial fights that would set the stage for how content would be handled on our electronic devices.

The U.S. Supreme Court's 1984 Sony Corp. of America v Universal City Studios Inc.decision coined what is known as "time shifting," referring to a user's ability to record a live show using the Betamax to watch it later. The court's decision set the precedent that a manufacturer would not be held liable for any contributory negligence or potential infringement where they did not have actual knowledge of infringement and their devices were sold for a legitimate, non-infringing purpose. As Justice John Paul Stevens wrote in the majority opinion:

One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible. It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written.

But not everyone was so enthusiastic. Jack Valenti, former president of the Motion Picture Association of America said in a congressional hearing two years prior [regarding VHS technology]:

We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.

The 9th U.S. Circuit Court of Appeals would take another approach in 2000s A&M Records v Napster. The court affirmed the district court's ruling that peer-to-peer services could be held for contributory infringement and vicarious liability. Even though their service merely facilitated the exchange of music as an intermediary, they were on the hook. Judge Marilyn Hall Patel wrote in the district court's ruling:

…virtually all Napster users engage in the unauthorized downloading or uploading of copyrighted music; as much as eighty-seven percent of the files available on Napster may be copyrighted, and more than seventy percent may be owned or administered by plaintiffs

Napster lodged several defenses, including fair use, but the most important (in lieu of the Sony decision) was the concept of "space-shifting," referring to the process of a user converting a compact disc recording to mp3 files, then using Napster to transfer the music to a different computer. Patel concluded Sony did not apply, because Napster retained control over their product, unlike Sony's Betamax, which was manufactured and sold, but not actively monitored.
The courts would continue ruling in a similar manner as other peer-to-peer services found themselves in the courtroom. At times, users would be targeted. And in the 2003 case of In re: Aimster, the pirates' bluntness for wanting to bring the music industry to its knees did not help the situation

What you have with Aimster is a way to share, copy, listen to, and basically in a nutshell break the law using files from other people's computers…. I suggest you accept aimster for what it is, an unrestricted music file sharing database – (posted by zhardoum, May 18, 2001)

Naturally with all of the music-sharing services were being shut down, the pirates found a new way to connect, share files and shape the industry. Which brings us to BitTorrent and websites like The Pirate Bay and Swepiracy. Torrenting does not require a central server, does not require direct streaming from one peer to another and the host does not contain any full file contents. All of the content received is from other users.

Sweden brought Pirate Bay to trial for both civil and criminal penalties. Per E. Samuelson, the site's attorney, lodged the now-famous (and familiar, for U.S. copyright scholars) King Kong defense:

EU directive 2000/31/EC says that he who provides an information service is not responsible for the information that is being transferred. In order to be responsible, the service provider must initiate the transfer. But the admins of The Pirate Bay don't initiate transfers. It's the users that do and they are physically identifiable people.

The defense was unsuccessful. Which brings many questions to mind for future cases — how will courts begin to rule with such complex systems of file transfer as fragmented torrents? Targeting users is widely unpopular, especially in the United States, where statutory penalties range from $750 to $300,000 per willful infringing use and $200 to $150,000 for non-willful infringement.

Efforts around the world have continually been made to combat piracy. But maybe it's time we take a fresh look at the market. As the Copia Institute observed in a recent report, whenever there are new ways to share content legally, users ultimately respond by employing those technologies.

On this International Talk like a Pirate Day, let's take a moment to remember the pirates and how they have helped shape the internet era. While CD sales and digital downloads may be declining, new streaming services are on the rise (vinyl records are also doing remarkably well). The digital revolution has, indeed, changed how we consume and access our music. It has given us access to (nearly) everything, through services like Spotify and Apple music, at a reasonable price and with unparalleled convenience.

From the consumer's perspective, you now carry hundreds of hours of music on your phone and listen to it whenever you want – no need for one of those bulky CD binders. The slot where the CD used to go in your car is now an auxiliary cable jack.

From an artist perspective's, these are new challenges that require adaptation. Particularly in the case of music licensing, our pre-existing laws are unnecessarily complex, cumbersome and antiquated. However, innovative technologies and services are not to blame. Instead, we should seek new and equally innovative ways for artists to be compensated through more direct and transparent payments (such as Ujo).

While our copyright laws are far from perfect, we still have substantial freedom to remix, repurpose and share creative content online in a social context. This is essential to online free expression, digital commerce and the proper functioning of the internet itself. As additional discussions in Congress and in the courts move forward, let's make sure we keep it that way.

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]]>talk-like-a-pirate-dayhttps://www.techdirt.com/comment_rss.php?sid=20160919/17184435565Mon, 25 Jul 2016 11:47:06 PDTJohn Oliver's Story On Campaign Music And Copyright Is... WrongMike Masnickhttps://www.techdirt.com/articles/20160725/07541435058/john-olivers-story-campaign-music-copyright-is-wrong.shtml
https://www.techdirt.com/articles/20160725/07541435058/john-olivers-story-campaign-music-copyright-is-wrong.shtmlmade repeatedly. But others disagree with him, pointing out that his show regularly does actual journalism. The fact that he's hired a bunch of journalists on his team kind of says a lot. Also, according to multiple people I know who have been interviewed for stories on his show, while his focus is on making things funny, his team also spends a lot of time making sure they get the details right. It's why we so frequently end up posting his videos on stories that relate to Techdirt topics -- because they're not only entertaining, but are also generally dead on in accuracy. It's why we've posted his videos on net neutrality, corporate sovereignty, encryption, surveillance, civil asset forfeiture and patent trolls.

But this past weekend, he not only covered last week's Republican National Convention, but also, separately, the fact that representatives for both Queen and the Rolling Stones complained publicly about the RNC using their music in prominent parts of the convention. Oliver got together a bunch of famous musicians (many of whom have protested politicians using their music) to sing a song telling politicians not to use their songs, claiming that it's "stealing" and unauthorized because the politicians didn't reach out to get permission.

This is flat out wrong in most situations. As we've pointed out again and again and again and again, in nearly all cases, politicians using music at an event have the proper licenses. They don't need to get permission from the musicians so long as either the campaign or the venue have ASCAP or BMI blanket licenses, which they almost always do. The whole point of ASCAP/BMI licenses is that you don't need to get individual permission from the artists or their publishers.

There are instances, occasionally, where politicians ridiculously don't have such a license, but it's pretty rare. And there may be a few other narrow exceptions, such as if there's an implied endorsement by the musicians, but that's rarely the case.

Unfortunately, the song from John Oliver and friends ignores all of that, even stating directly at one point that for a politician to use music, you first have to call the publisher. That's wrong. ASCAP and BMI already have taken care of that.

Perhaps this isn't a huge deal, but one would hope that Oliver would actually get the basic facts right on this too, because every election season this issue comes up and spreading more misinformation about it doesn't help.

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]]>this-again?https://www.techdirt.com/comment_rss.php?sid=20160725/07541435058Fri, 1 Jul 2016 18:18:00 PDTThin-Skinned Chinese Govt. Declares Media War On Lady Gaga For Meeting With The Dalai LamaTimothy Geignerhttps://www.techdirt.com/articles/20160629/05325934858/thin-skinned-chinese-govt-declares-media-war-lady-gaga-meeting-with-dalai-lama.shtml
https://www.techdirt.com/articles/20160629/05325934858/thin-skinned-chinese-govt-declares-media-war-lady-gaga-meeting-with-dalai-lama.shtml
It's pretty common knowledge at this point that the Chinese government spends a great deal of time and effort attempting to censor the internet at its own whim. And, while the walls of censorship erected are penetrable with enough effort, it still results in much of the population being unable to search out information that might be embarrassing to the Chinese government, such as references to the Tiananmen Square incident, for instance. But while examples like that can make some measure of sense to outside observers, even as they still decry the censorship, the fact is that the Chinese government's application of this censorship has been managed so erratically and unpredictably that the result is everyone watches where they step for fear of a takedown.

Hong Kong news outlet Apple Daily reports that China’s Ministry of Propaganda and SARFT, the regulatory body that oversees media, ordered China’s broadcast and websites to stop offering Lady Gaga songs. They also ordered media outlets not to publish anything (link in Chinese) about Lady Gaga’s meeting with the Dalai Lama, other than what prominent state-media publications have written.

“[Media outlets] must resolutely struggle against Tibetan independence, and closely follow reports from CCTV, the Global Times, People’s Daily, and other reports and commentary from central media outlets,” the directive reads, according to Apple Daily.

The Tibet issue is one that China regularly regulates in terms of coverage, of course, and the Dalai Lama is the worldwide person of focus for the cause of Tibetan indpendence. Even so, reacting to a meeting with an American pop singer by attempting to scrub the internet of news of the meeting and her music seems delightfully ham-fisted, even for Chinese censorship. And, as per usual, it isn't working particularly well.

A search on QQ Music, one of China’s most popular music streaming sites, shows there’s still plenty of Lady Gaga music available.

Which makes, as usual, the attempt at censorship come off as both petty and the wild flailings of an ineffective government agency. That, I would assume, is not the perception that the Chinese government was hoping to achieve. There will come a day when this particular government finally understands that these censorship attempts don't work in any way other than to supply a great deal of egg on its collective face, but that day is apparently not today.

The DataDUO is an interesting take on a synthesizer: it's designed to be accessible and fun for kids, and to be played by two people at once, especially as a collaborative creation tool for a parent and child. One side of the device is a basic dual-oscillator synthesizer with some simple cutoff and envelope controls, and the other is a circular sequencer with a pentatonic keyboard. The result is that it's very easy to create pleasing, harmonious melodies since almost any combination of notes you can generate will sound good — and it creates a back-and-forth between two users, with one controlling the melody that gets played and the other controlling the character of the synthetic sounds themselves. It probably won't be finding its way into many professional audio workflows, but it looks like a lot of fun to play with, and definitely serves as a great way to introduce kids to the basics of synthesizers.

For the more serious synth aficionado, the Crowminius offers an experience akin to one of the all-time classics: the Minimoog. It's a tightly designed fully analog synthesizer that packs into a compact case, and offers a great array of tools: three oscillators with six waveforms to choose from, robust modulation and control options, a white/pink/red noise generator (that can itself also serve as a modulator), and a distinct filter and amplifier. The whole thing is MIDI compatible and can also be controlled with old-school voltage signals, and it's perfect for synth modders and circuit benders as it's constructed entirely out of standard electronic components so it can be easily tweaked and expanded by those with the knowhow (not to mention repaired).

Not every modern, high-tech instrument has to be a synthesizer: the 3Dvarius is a stylish electric violin with a fully 3D-printed body. The design is modelled after the iconic and unmatched Stradivarius, but at a glance it looks like something out of a sci-fi movie prop box. The body is printed as a single, solid piece that has been carefully tweaked for maximum usability and sound transmission, and it also employs an extremely high-quality sound sensor so that it doesn't need a preamp like most electric violins — meaning its sound fidelity is as faithful as possible, with no additional noise and no distortion of the sounds truly coming out of the strings.

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]]>bleep-bloophttps://www.techdirt.com/comment_rss.php?sid=20160611/07310034687Fri, 3 Jun 2016 08:32:38 PDTTwo Separate Copyright Rulings Around The Globe May Finally Clear The Copyright Way For SamplingMike Masnickhttps://www.techdirt.com/articles/20160602/17395134611/two-separate-copyright-rulings-around-globe-may-finally-clear-copyright-way-sampling.shtml
https://www.techdirt.com/articles/20160602/17395134611/two-separate-copyright-rulings-around-globe-may-finally-clear-copyright-way-sampling.shtmlcalled Copyright Criminals that I highly recommend watching if you can find it. Here's the trailer:

A big part of the problem was a horrible ruling in the 6th Circuit in one of the (many) Bridgeport cases (a company that is alleged to have forged records to get control over heavily sampled works, and then sued lots of artists over their samples). In Bridgeport v. Dimension Films, a confused 6th Circuit appeals court made a bunch of nutty comments in a ruling, including "Get a license or do not sample. We do not see this as stifling creativity in any significant way." That case, which didn't even look at the fair use issue, effectively wiped out another legal defense against accusations of copyright infringement, known as "de minimis use." The court's bizarre ruling contradicted plenty of others in basically saying there's no such thing as de minimis use because each sampled note has value or it wouldn't have been sampled. This tautological reasoning is directly in that awful ruling:

Why is there no de minimis taking...? ... [E]ven when a small part of a sound recording is sampled, the part taken is something of value.(11) No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.

And while this ruling has been troubling copyright and music sampling folks for ages, no one seemed willing to challenge it. But, a few years back, we wrote about VMG Salsoul suing Madonna over her hit song "Vogue," claiming it used a sample from the VMG Salsoul song "Chicago Bus Stop." You can listen to both tracks and I assure you that you will not see any similarities, because they're totally different. In fact, VMG claimed that part of the reason it took 20 years to sue over this was because Madonna "hid" the sample -- which (to us, at least) raised serious questions about how it could be copyright infringement at all. In our article, we noted the mess in the 6th Circuit and the fear of others testing that ruling, but the Madonna case went forward (in the 9th Circuit, rather than the 6th) and Madonna won, and has now won again on appeal, with the court flat out rejecting the Bridgeport ruling in the 6th Circuit, and saying that de minimis use exists in sampling:

We reject that interpretation of § 114(b). Bridgeport
ignored the statutory structure and § 114(b)’s express
limitation on the rights of a copyright holder. Bridgeport also
declined to consider legislative history on the ground that
“digital sampling wasn’t being done in 1971.” ... But the state of technology is irrelevant to interpreting
Congress’ intent as to statutory structure. Moreover, as
Nimmer points out, Bridgeport’s reasoning fails on its own
terms because contemporary technology plainly allowed the
copying of small portions of a protected sound recording....

Close examination of Bridgeport’s interpretive method
further exposes its illogic. In effect, Bridgeport inferred from
the fact that “exclusive rights . . . do not extend to the making
or duplication of another sound recording that consists
entirely of an independent fixation of other sounds,”
... the conclusion that
exclusive rights do extend to the making of another sound
recording that does not consist entirely of an independent
fixation of other sounds. As pointed out by Nimmer,
Bridgeport’s interpretive method “rests on a logical fallacy.” ...
A statement that rights do not extend to a particular circumstance does not automatically mean that the
rights extend to all other circumstances. In logical terms, it
is a fallacy to infer the inverse of a conditional from the
conditional.

The ruling also rejects that weird "physical taking" line quoted above as a reason to ignore de minimis use as a defense against infringement:

We disagree for three reasons. First, the possibility of a
“physical taking” exists with respect to other kinds of artistic
works as well, such as photographs, as to which the usual de
minimis rule applies.... A
computer program can, for instance, “sample” a piece of one
photograph and insert it into another photograph or work of
art. We are aware of no copyright case carving out an
exception to the de minimis requirement in that context, and
we can think of no principled reason to differentiate one kind
of “physical taking” from another. Second, even accepting
the premise that sound recordings differ qualitatively from
other copyrighted works and therefore could warrant a
different infringement rule, that theoretical difference does
not mean that Congress actually adopted a different rule.
Third, the distinction between a “physical taking” and an
“intellectual one,” premised in part on “sav[ing] costs” by not
having to hire musicians, does not advance the Sixth Circuit’s
view. The Supreme Court has held unequivocally that the
Copyright Act protects only the expressive aspects of a
copyrighted work, and not the “fruit of the [author’s] labor.”
... Indeed, the Supreme Court in Feist explained at
length why, though that result may seem unfair, protecting
only the expressive aspects of a copyrighted work is actually
a key part of the design of the copyright laws....
Accordingly, all that remains of
Bridgeport’s argument is that the second artist has taken
some expressive content from the original artist. But that is
always true, regardless of the nature of the work, and the de
minimis test nevertheless applies.

And thus, the 9th Circuit directly admits that it's creating a circuit split, which makes it much more likely that the Supreme Court may take up the issue:

Because we conclude that Congress intended to maintain
the “de minimis” exception for copyrights to sound
recordings, we take the unusual step of creating a circuit split
by disagreeing with the Sixth Circuit’s contrary holding in
Bridgeport. We do so only after careful reflection because,
as we noted in Seven Arts Filmed Entertainment Ltd. v.
Content Media Corp.,..
“the creation of a circuit split would be particularly
troublesome in the realm of copyright. Creating inconsistent
rules among the circuits would lead to different levels of
protection in different areas of the country, even if the same
alleged infringement is occurring nationwide.” ... We
acknowledge that our decision has consequences. But the
goal of avoiding a circuit split cannot override our
independent duty to determine congressional intent.
Otherwise, we would have no choice but to blindly follow the
rule announced by whichever circuit court decided an issue
first, even if we were convinced, as we are here, that our
sister circuit erred.

It also notes, as we did, that no one would ever be able to tell that the Madonna song sampled Bus Stop:

After listening to the recordings, we conclude that a
reasonable jury could not conclude that an average audience
would recognize the appropriation of the composition.

Furthermore, the fact that the sample was modified helps Madonna's case:

The horn hit itself was not copied precisely. According
to Plaintiff’s expert, the chord “was modified by transposing
it upward, cleaning up the attack slightly in order to make it
punchier [by truncating the horn hit] and overlaying it with
other sounds and effects. One such effect mimicked the
reverse cymbal crash. . . . The reverb/delay ‘tail’ . . . was
prolonged and heightened.” Moreover, as with the
composition, the horn hits are not isolated sounds. Many
other instruments are playing at the same time in both Love
Break and Vogue.

The ruling even notes that VMG Salsoul's own expert "misidentified" the source of the sampled note, showing that even their own expert couldn't correctly understand what was sampled here (oops). And in the end, the court supports de minimis use:

We hold that the “de minimis” exception applies to
actions alleging infringement of a copyright to sound
recordings.

Separately, the court did overturn the district court awarding attorneys' fees in the case, saying that the lawsuit was not "objectively unreasonable" in light of Bridgeport, even if that case was disputed by many.

There is also a really confused dissent by Barry Silverman that goes along the "copyright is a property right and any infringement on that right is bad" line of thinking:

The plaintiff is the owner of a copyright in a fixed sound
recording. This is a valuable property right, the stock-intrade
of artists who make their living recording music and
selling records.... It is no
defense to theft that the thief made off with only a “de
minimis” part of the victim’s property.

And then there's this:

True, Get a license or do not sample doesn’t
carry the same divine force as Thou Shalt Not Steal, but it’s
the same basic idea. I would hold that the de minimis
exception does not apply to the sampling, copying, stealing,
pirating, misappropriation – call it what you will – of
copyrighted fixed sound recordings. Once the sound is fixed,
it is tangible property belonging to the copyright holder, and
no one else has the right to take even a little of it without
permission.

It's kind of horrifying when an appeals court judge doesn't know the difference between theft and infringement. Thankfully, he's in the minority.

Either way, this circuit split increases the chances of the Supreme Court weighing in. That could be good in finally getting the 6th Circuit precedent destroyed. Or... it could be bad in that this particular Supreme Court seems to almost always get copyright cases wrong, meaning it could affirm the 6th Circuit interpretation and dump the 9th's, once again doing serious harm to sampling as an art form.

Meanwhile, however, over in Germany, they've taken a much more enlightened view on all of this in a similar case involving Kraftwerk whining about a hip hop song sampling some of its music. The German Bundesverfassungsgericht (German federal constitutional court) has given a big okay to samples by noting that their artistic merit outweighs the copyright issue:

If the artist’s freedom of creative expression is measured against an interference with the right of phonogram producers that only slightly limits the possibilities of exploitation, the exploitation interests of the phonogram producer may have to cede in favour of artistic dialogue.

The ruling basically tries to balance the right to "artistic freedom" with copyright law, and basically argues that in cases where those doing sampling aren't doing any real harm to the original copyright holder, the artistic freedom should win out. The court rejects the idea that using a short sample interferes with the copyrights of the original:

The presumption by the Federal Court of Justice that even the inclusion of very brief sound sequences constitutes an interference with the plaintiffs’ right to protection as phonogram producers if the used sequence can be reproduced so as to sound like the original, does not take sufficient account of the right to artistic freedom. Where a musical artist who intends to use samples to create a new work does not want to refrain from including a sample in his new piece of music, the strict interpretation of free use by the Federal Court of Justice puts him in the position of having to decide whether to obtain a sample license from the phonogram producer or to reproduce the sample himself. In both cases, however, the freedom of artistic activity and hence also the further cultural development would be restricted.

Just because you can license some samples doesn't fix the situation:

Emphasising the possibility to obtain a license does not provide an equivalent degree of protection of the freedom of artistic activity: A right to be granted a license to use the sample does not exist; due to his right of disposal, the phonogram producer may deny a licensing without having to give reasons and irrespective of the readiness to pay for the use of the sample. The phonogram producer is entitled to demand the payment of a license fee for the use of the sample, the amount of which he is free to determine. The process of granting rights is extremely difficult in case of works which assemble many different samples in a collage-like manner. These problems are only solved insufficiently by existing sample databases and service agencies that assist musical artists in the process of sample clearing.

In other words, the German approach here is a big, big deal, recognizing that sampling is a form of artistic expression, and requiring licenses for it stifles creativity and musical expression. This is a much bigger deal than the US situation, where we're still arguing over de minimis use (and not even fair use!). Meanwhile, over in Germany they're directly looking to enable more artistic freedom.

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]]>good to seehttps://www.techdirt.com/comment_rss.php?sid=20160602/17395134611Wed, 25 May 2016 08:34:49 PDTCopyright As Censorship: Questionable Copyright Claim Forces Indie Musician To Destroy All Physical Copies Of New AlbumMike Masnickhttps://www.techdirt.com/articles/20160523/08060434523/copyright-as-censorship-questionable-copyright-claim-forces-indie-musician-to-destroy-all-physical-copies-new-album.shtml
https://www.techdirt.com/articles/20160523/08060434523/copyright-as-censorship-questionable-copyright-claim-forces-indie-musician-to-destroy-all-physical-copies-new-album.shtmlagreed to destroy all the physical copies of the album after The Cars' Ric Ocasek complained that he didn't like it. So the digital release came out, with a replacement version of the song that Toledo apparently rewrote a week before the album was released, and a new physical version will come out... sometime.

Here's the way Toledo explained it:

Life happens and sometimes not in ideal ways. If you’ve heard anything about the new album, then you’re probably aware that one of its songs made use of The Cars song “Just What I Needed.” Now, obviously, when we called the record ‘done’ and sent it off to be printed, we were working in full confidence that we had the legal side of it all worked out. We found out last week that this was not the case. I’m not going to get into the nitty-gritty of email chains and invested parties; suffice it to say that Matador (and I) were neither pulling a Banksy nor operating in ignorance of the law, but that we truly believed we had the issue resolved months ago, until last week.

As you may have heard, vinyl is being pulled from stores right now. There’s a total recall out, and all copies with the original version of the song will be destroyed. Nevertheless, Teens of Denial WILL COME OUT ON MAY 20TH, at least digitally. I spent the last 48 hours working on an alternate cut of the track, which is now called “Not What I Needed”. It’s not merely an edit – it is its own thing, about half a minute longer than the original track, and goes in a much different direction. Honestly, despite the apparent clusterfuck, I had fun doing it, and I think it’s a stronger song now. In any case I’ve grown up accustomed to working on an album right up to its drop date, so this is not a freak-out scenario for me. The album is going to come out on time and it’s going to be good.

The physical release will not come out on time, obviously. We’ll likely see a street date of sometime in July. I’m very sorry to everyone who was anticipating a preorder (it does sound GREAT on vinyl). It will be in your hands eventually. But it was very important to me that we keep the digital release for May. We’ve all been waiting long enough. Most of my music only exists online anyways, so it makes sense that this album should start the same way.

Thanks for your continued support, and I am very excited for this fucking record to come out already.

-Will Toledo aka Car Seat Headrest

In short, "we thought we had a license, but turns out we didn't." But I'm still confused as to whether or not a license is truly needed here. Of course, there's enough ambiguity over the law that I can see why no one would want to chance it. If it was truly a "cover" then we have compulsory licenses for that, and it wouldn't matter what Ocasek thought, because he couldn't stop it. But, one of the true oddities of copyright law is that such compulsory licenses really only apply if you do a cover that is a faithful representation of the original, and from folks who have heard the now vanished song, it was not that at all:

“There Is a Policeman in All Our Heads, He Must Be Destroyed” starts off sounding like a straightforward cover of The Cars’ “Just What I Needed”, but Toledo superimposes a different vocal melody on the intro to create what is essentially a brand-new song. Later, in the outro, he returns to the Cars song and adopts Ric Ocasek’s original vocal melody. The end result is strange and delightful — a kind of cover-within-a-song that plays around with expectations and comes across as entirely original.

From that, it certainly sounds like it was not "a sample" as many reporters are claiming, but rather just a transformative work paying homage to The Cars' original. And, as such, you'd think that there would be a very strong fair use argument. But, fair use and music remains a tricky minefield with no clear rules, and I can see why Toledo and Matador wouldn't want to spend time and money in court defending this, especially given that a positive result is no sure thing.

Still, for people who love music, this seems like a somewhat horrific result. Yes, Toledo is cheerful about the whole thing and insists that the revised work is a better track, but this is yet another example of copyright being used to literally destroy a piece of culture. And I think we should find that revolting. As the folks at Consequence of Sound, who heard the track, noted in their story on this:

The biggest bummer is that the listening public may never get to hear “There Is a Policeman in All Our Heads, He Must Be Destroyed”

I'm guessing that sooner or later (or perhaps already?) some version of this track will leak out and become available, because this is the internet. But it's still disappointing that Ocasek is using copyright as an effective veto on someone else's creativity.

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]]>isn't-that-nicehttps://www.techdirt.com/comment_rss.php?sid=20160523/08060434523Mon, 23 May 2016 09:26:00 PDTYou're Entitled To Your Own Opinions, But Not Your Own Facts About Copyright, NY Times EditionMike Masnickhttps://www.techdirt.com/articles/20160520/12113134499/youre-entitled-to-your-own-opinions-not-your-own-facts-about-copyright-ny-times-edition.shtml
https://www.techdirt.com/articles/20160520/12113134499/youre-entitled-to-your-own-opinions-not-your-own-facts-about-copyright-ny-times-edition.shtmlSilicon Valley hates music, that is so chock full of out and out factual errors that it's an embarrassment for the NY Times to have allowed it to be published. Is fact checking dead at the Gray Lady? It's perhaps not as embarrassing for Taplin, who's been spewing ridiculous falsehoods for years about how technology is out to destroy all creative culture. In the past we've had to correct his blatantly false statements, but it seems odd to us that the NY Times would let him publish a piece so devoid of facts. Let's dig in and do some editing and fact checking that the NY Times apparently failed to do.

That’s a fight artists are losing. It’s been 17 years since Napster, the online file-sharing software, began flooding the Internet with free, illegally uploaded music, devastating musicians and the industry. While Napster is long gone, the looting continues, only now it is technology giants like Google and SiriusXM, along with streaming services like Pandora, that are responsible.

This is an interesting, and bizarre, claim, given that unlike Napster, the three companies named all pay a ton of money in license fees for the works in question. In fact, both SiriusXM and Pandora have struggled to reach profitability in large part because of the massive percentage of revenue that goes directly to record labels (note: not directly to the musicians themselves, which may give you a hint as to the real problem). Last fall, Pandora noted that it had paid $1.5 billion in licensing, with over $500 million of that coming in 2015 alone (and this was before the year ended). The company has shown that approximately 60% of revenue goes to licenses, and this is a capital intensive business, given that it has to stream a ton of content and bandwidth for that level of streaming is not cheap. Spotify, similarly, has claimed to pay out approximately 70% of revenue. A year ago, Spotify claimed to have paid out $3 billion, noting a run rate of over $1 billion paid to artists per year. YouTube has similarly paid out over $3 billion.

It takes quite a lot of gall to argue that these services, which didn't exist at all just a few years ago, but which have consistently moved people away from piracy by creating services that people like -- and which often pay more than 50% of their revenue in royalties, are somehow "looting" the industry. Does he not realize that without these services, it's likely that there would actually be more piracy, from which the artists would receive no direct remuneration? Would he prefer that? Or would he prefer that these companies be forced to pay even more so that they couldn't even exist any more at all, which would, once again, drive people right back to piracy? It makes no sense at all. To call this "looting" is nonsensical and not fact-based.

YouTube, which is owned by Google, is now the world’s dominant audio streaming platform, dwarfing Spotify and virtually every other service. Yet it pays artists and record companies less than a dollar a year for every user of recorded music, thanks to rampant piracy on its site (by contrast, Spotify licenses its music and pays $20 per user each year).

This is comparing apples to oranges. Spotify is just a music service. YouTube is mostly other stuff, with some music. Notice that he doesn't compare Spotify to YouTube Red or to Google Music, which are more on par.

The problem has gotten so bad that, in 2015, vinyl record sales generated more income for music creators than the billions of music streams on YouTube and its competitors.

This point was a talking point that the RIAA trotted out earlier this year and has already been debunked. Vinyl HAS NOT generated more income for music creators than music streams. That's just blatantly false. What the RIAA showed was that gross retail value of vinyl sales (i.e., ignoring actual sales price, as well as the cut that goes to retailers and other middlemen) was higher than the net amount that was paid in royalties on just ad-based music streaming (i.e., ignoring all of the subscription and paid revenue). This is worse than an apples to oranges comparison. And, even then, with those caveats, Taplin's claims go way beyond what the RIAA actually showed. The royalties from vinyl that actually went back to artists were a lot less than what went to artists from ad-supported music streaming, not to mention all music streaming.

Either Taplin is lying or he's totally misinformed.

Google has also leveraged its dominance in Internet search into a cash cow built on advertising. But Google doesn’t care if your search for the movie “Mean Streets” or the music from “The Last Waltz” (both of which I produced) brings up licensed versions or pirated copies: The company sells ads and cashes in either way. Creators, however, get nothing from those stolen copies — except the anguish of watching others grab the value of their life’s work.

Okay, let's try it. I searched for "Mean Streets" on YouTube and on Google's video search. I don't see a pirated copy anywhere. YouTube does show me a licensed version and a variety of obviously fair use clips (all less than 5 minutes). Google Video search seems to just show me the theatrical trailer and some fair use clips.

In neither search do I see an unlicensed version. A regular (not Google Video search) Google search again points to clips, but also has multiple options on where you can pay to see a licensed version. I don't see a pirated version anywhere.

Google has basic “digital fingerprinting” technology that could scrub both YouTube and its search results of illegal versions. But instead of safeguarding the work of artists, Google wields this tool as a bludgeon. Creators can either enter into a licensing agreement with YouTube at very low royalty rates, or get left at the mercy of pirates. What looks like protection for copyright holders is more of a protection racket benefiting Google.

This is blatantly false. Not only is it blatantly false, but just last week at the Copyright Office hearings in San Francisco that Jonathan Taplin attended, when someone claimed this, Fred von Lohmann from Google pointed out that it is absolutely false -- something he has now reiterated on Twitter:

What Taplin is (apparently willfully?) confusing, is that in order to use ContentID, you do need to grant Google a license, but that license is to make it legal for them to then hold the copy of the work on file for the purpose of fingerprinting. And, then, you can use ContentID to do "notice and staydown" of any matching copies. To blatantly misrepresent how Google works just days after being told this is wrong just seems... like someone with an axe to grind with no concern for the facts at all.

And all of that raises the question of why the NY Times allowed it to be published without doing even the slightest fact checking?

Unfortunately, there is a sad history of undervaluing musicians in the United States. Terrestrial radio, a $17 billion industry, pays publishing rights (payments to songwriters) but has never paid artists or record companies for music.

Yes, some could make an argument that this setup is unfair, but the market suggests otherwise. The reason that the law said that performers didn't need to be paid was because it recognized that radio was promotional. And it is. That's why every few years the recording industry gets caught up in a new scandal about payola. That is, the copyright holders of the sound recordings have long recognized that radio play is so valuable that they will pay extra money under the table to make it happen, even if that's illegal. Obviously, if the radio play wasn't so valuable, this wouldn't be happening. And yet now they want to get paid extra for that value? That seems to be the exact opposite of what the market suggests is the power dynamic here.

In addition, the satellite radio company, SiriusXM, pays below-market royalties, thanks to a giveaway it first wrested from Congress 20 years ago.

"Below market"? Based on... what? Again, SiriusXM has struggled to barely reach profitability. After years of losses, it has been profitable recently, but just barely.

Conglomerates like iHeartMedia (formerly Clear Channel Communications) and other online services like Pandora, which are required to pay artists for digital streams, have exploited federal copyright law to deny payments for work recorded before 1972 (songwriters are paid; performers are not). This means artists like Aretha Franklin, Ella Fitzgerald, Chuck Berry and John Coltrane never received a dime from AM/FM radio and or from many digital services for some of their greatest music.

The pre-1972 stuff is a long and complicated story that we've covered in detail, and has a lot more to do with the fact that pre-1972 sound recordings are not covered by federal copyright law than any willful plan to "exploit" anyone. And there's a simple solution to this: put those works under federal copyright law. But you know who's fought hard against that? Taplin's friends in the RIAA. Maybe he should take it up with them. He also ignores, of course, that Pandora recently agreed to pay $90 million for those recordings, despite it not being clear if it needs to, legally. Is Taplin asking how much of that money will actually go to artists? Hmm...

The last meaningful legislation in this area was the Digital Millennium Copyright Act in 1998, which was based on the idea that creators should monitor the Internet for illegal copies of their works and give “notice” to websites and services to take pirated material down. Under the act’s “safe harbor” provisions, any service or site that makes a minimal effort to address these notices is immune from liability for piracy or theft.

"Minimal effort"? He seems to be ignoring the vast number of lawsuits, including the one against Veoh, in which Veoh won, but had to shut down over legal fees. It also ignores the fact that basically every other platform spends a ton of money handling takedown notices.

And it ignores the fact that most services have implemented filters and tools that go way above and beyond what the law requires. Why would Taplin ignore all of this? Why would the NY Times let him do so?

That system may have made sense when it took minutes to download an illegal song. But today no individual can effectively police the millions of pirated files that mushroom online and reappear the instant after they are taken down. Google alone received almost 560 million takedown notices in 2015.

And, again, Google spent $60 million building ContentID and related tools that go way beyond what the law requires and gives copyright holders the ability to either monetize their works in new ways or to issue a "notice and staydown".

There are two concrete steps Congress can take that would allow musicians to be treated fairly. First, Congress should update the safe harbor rules of the copyright act to achieve the balance that was intended: protecting creators with effective tools in exchange for not burdening Internet companies with liability. That means strong, well-defined consequences for repeat offenders, easing the process for filing notices and ensuring that services are using the best technology to take pirated material off their sites and keep it off.

So, basically, after flat out lying throughout the piece, and pretending that Google doesn't already have these tools, he wants a law to require such tools. Note: Google already has everything Taplin is asking for. But it spent $60 million putting that together. If Taplin got what he wanted, he'd lock in Google/YouTube as basically the only players able to handle this market. Does he want new providers and services or is he trying to kill the market entirely?

Second, Congress can address the original sin of AM and FM radio and close the loophole that allows radio companies to use music without paying artists. The Fair Play Fair Pay bill, which has Representative Jerrold Nadler of New York as a sponsor, would ensure that all music creators received fair-market-value pay for their work no matter what technology or service was used to play it. It has the support of hundreds of artists like Rosanne Cash, Duke Fakir of the Four Tops, Elvis Costello, Martha Reeves, Elton John and Common.

Again, given payola, it's hilarious for him to argue that this is necessary, but he's entitled to his opinion -- just not his own facts.

In 2015, after years of battling pirates, Prince said in an interview that the Internet “was over for anyone who wants to get paid.” With Congress’s help, it needn’t be.

Prince was wrong then and he's wrong now. There are more musicians making money from the internet today than ever made money prior to the internet. There are content creators using YouTube, Spotify, Songkick, Soundcloud, Amazon, Apple, Kickstarter, IndieGogo, Patreon and many, many more services to not just make money but to build strong and lasting relationships with their fans.

Again, it's no surprise that Taplin would lie. It's kind of his thing when it comes to his misguided and misinformed anger at the very innovation that's saving the entertainment business. The question is why the NY Times, a paper that prides itself on accuracy, would allow a piece so blatantly false to be published.

But, really, the most disturbing thing about this is that it perpetuates the myth that it's "content creators" v. "the tech industry." This is nonsense. Technology has been a major force in enabling more content creators -- including myself -- to create content, to promote it, to distribute it, and to monetize it. More people than ever before are making and distributing music, videos, books, software and more... because of these tech platforms. This isn't a zero sum game. There are opportunities for everyone to benefit, and setting up this false dichotomy that when one wins the other loses, Taplin and the NY Times are actually setting everyone up to lose by not just misrepresenting reality, but totally misunderstanding the very nature of both creativity and innovation.

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]]>fact checking is deadhttps://www.techdirt.com/comment_rss.php?sid=20160520/12113134499Sat, 30 Apr 2016 09:00:00 PDTAwesome Stuff: Make More MusicLeigh Beadonhttps://www.techdirt.com/articles/20160430/08012334318/awesome-stuff-make-more-music.shtml
https://www.techdirt.com/articles/20160430/08012334318/awesome-stuff-make-more-music.shtml
It's music-making time again! This week, we've got another set of crowdfunded devices that unlock new and unexpected ways to play with sound and create new tunes.

The Dualo is all about making it easy to create music, but that hasn't stopped it from being an interesting device by several professional standards. Its core functions are the two banks of buttons that are set up to group harmonious notes nearby (so pressing any local set of buttons is likely to produce a pleasing combination) and which can be switched between 52 different synthesized instruments, and a 7-track on-the-fly looper that lets you layer these sounds on top of each other as you play. What's notable and rare among these kinds of instruments is that the Dualo is a self-contained, standalone device — it doesn't require an associated app or a computer, though it can also double as a MIDI input device in larger digital music workflows.

AirJamz is really more of a toy than anything else, but it sure does look like a fun toy. It's a wrist-mounted motion sensor that interfaces wirelessly with a mobile app to produce sound from that age-old pastime of playing air guitar. Your miming strums are converted into actual guitar sounds, though it's a little unclear just how much control over those sounds the system really provides. Nevertheless, it looks like fun — and, again, is MIDI compatible, opening up all sorts of possibilities. With the ability to run four sensor units in tandem, AirJamz might find the most adoption as a party game.

The XTH Sense is the most ambitious and different of this week's projects: a bio-sensor based music creation device. Like the AirJamz, it straps to your wrist and detects movement — but it doesn't stop there. The unit includes a bioacoustic microphone that listens for pulse, blood flow and muscle movement, and a thermometer to track body temperature, and performs some algorithmic wizardry to combine all these variables into a shifting signal that controls other devices. Music creation is one of its flagship applications, but not the only one: it also has potential as a virtual reality device, a gaming controller and more, not to mention it could be used simply as a bio-sensor for those who want to access that data. Like our other devices this week, the XTH Sense has full MIDI compatibility, and even comes with pre-made plugins for a bunch of popular music production software packages — plus, it's compatible with the Arduino IDE, and comes with a flexible API for building custom apps.

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]]>different-ways-to-playhttps://www.techdirt.com/comment_rss.php?sid=20160430/08012334318Thu, 28 Apr 2016 11:39:00 PDTLessons From Prince's Legacy And Struggle With Digital Music MarketsZach Graveshttps://www.techdirt.com/articles/20160428/10570534304/lessons-princes-legacy-struggle-with-digital-music-markets.shtml
https://www.techdirt.com/articles/20160428/10570534304/lessons-princes-legacy-struggle-with-digital-music-markets.shtml
Undeniably, Prince’s death last week marked the loss of a true musical genius and maverick. In his life, he was known for being a talented musical innovator with flamboyant clothes and a contrarian streak. He was adept at a range of instruments, as well as in multiple genres of music including funk, jazz, pop, rock, and R&B.

As broadly gifted an artist as he was, Prince never quite found the right approach when it came to licensing his music for distribution -- in spite of the fact that sold over 100 million records, placing him among the best-selling artists of all-time. He won an Oscar, a Golden Globe, and seven Grammys, among other accolades. His massive discography includes 50 albums, 104 singles, 136 music videos, among other creative works. And yet his fans were left in the odd position, on the news of his death, of being frequently unable to provide links to Prince’s massive oeuvre.

Like David Bowie, who died only a few months earlier this year, Prince was constantly reinventing himself throughout his career. But one key reason for his reinvention -- at different times, he was known by “Prince,” “Jamie Starr,” an unpronounceable glyph, and perhaps most notoriously, as “The Artist Formerly Known as Prince” -- was his unhappiness with his record labels, and later with digital/Internet distribution.

And even now, if you’re looking to listen to your favorite Prince tracks on popular digital music services like Spotify or Apple Music, you’re out of luck. While you can find some live performances on YouTube, and a couple exceptions like his single “Stare” on Spotify, the streaming rights to his music are licensed exclusively through Tidal -- a niche subscription-only service owned by Jay Z.

You can see why Prince may have been attracted to Tidal as a service. Since its launch in late 2014, a number of major artists have embraced it, offering exclusive releases and touting the service’s better deal for artists. Indeed, Tidal purports to “pay the highest percentage of royalties to artists, songwriters and producers of any music streaming service.”

But it’s hard to see how it would make business sense to exclusively license with them, as Prince did. For one thing, it’s not entirely clear that Tidal’s rates are that much better than Spotify. Respectively, they each claim to pay out 75% and 70% of their revenues to rights holders. Yet, Tidal has also claimed that they pay out four times Spotify’s royalty rate.

Vania Schlogel, then executive at Tidal, clarified their rates in an interview for the Hollywood Reporter

There was some confusion on the Internet about whether “royalty rate” was a percentage of Tidal’s total revenue. According to Schlogel, it is. The industry standard royalty rate, she says, is 70% (roughly 60% to record labels, roughly 10% to artists via publishers). Tidal pays 62.5% and 12.5% (which equals the 75% Jay Z is referring to).

This makes their base royalty rate going to artists 25% higher than Spotify. But Tidal also has about 45% of their subscribers on a $19.99 per month premium tier. This would make the share of revenue going to artists around 80% higher.

That’s a lot more! Artists should all be switching to exclusive deals with them, right? Well...not so fast. Spotify alone has 30 million paying subscribers. 100 million if you include ad-supported free tier listeners. Apple Music has another 11 million paid subscribers. Compare that with Tidal’s relatively paltry 3 million. Not to mention commercial distribution to YouTube’s 1 billion active users, or the dozen other streaming services out there.

Assuming those subscribers have comparable activity profiles, it wouldn’t make business sense even if they paid ten times the royalty rate -- at which point it would be more than total revenue. Although, artists can do whatever they want. It’s a free market (sort of).

But for Prince, his embrace of Tidal may not have been just about royalty rates. Rather, it may have been a reflection of his proclivity to assert tight control of his brand. As Vox’s Constance Grade writes:

It's classic Prince: Tidal is the best program not only because it pays better, but because it gives him the most control over his music and his persona. And Prince never let someone else control his persona if he could help it.

This was fully consistent with the character of a man who preferred to play small, intimate venues even when he could have been selling-out stadiums.

But making music less accessible poses serious challenges for artists and consumers alike. For one thing, as English singer/songwriter Lily Allen explains, it will reinvigorate incentives for piracy (notably, she has also had an interesting relationship with Techdirt):

I love Jay Z so much, but Tidal is (so) expensive compared to other perfectly good streaming services, he's taken the biggest artists ... Made them exclusive to Tidal (am I right in thinking this?), people are going to swarm back to pirate sites in droves ... Sending traffic to torrent sites.

Perhaps unsurprisingly, when Kanye West decided to release his album The Life of Pablo exclusively on Tidal, it was pirated over 500,000 times in its first day alone -- drawing fire for reinvigorating online music piracy.

A recent study by Columbia University (among other research including the Copia Institute’s “The Carrot Or The Stick?”) confirms that providing access to good legal alternatives is effective at reducing online piracy -- particularly among young people. To take another example, the rise of Spotify in Sweden was followed by a major decline in music sharing on the Pirate Bay. According to Copia’s study, “a similar move was not seen in the file sharing of TV shows and movies...until Netflix opened its doors in Sweden.”

During his career, Prince also flirted with various album release strategies, and explored ways to cut out the middleman by going fully independent.

Prince’s strategy was visionary, but ahead of its time. A solution that’s just now coming of age is blockchain-driven smart contracts for digital music consumption. If they catch on, they could cut out the middleman and transparently distribute revenues directly to artists behind a given work, according to pre-arranged terms. Prototype service Ujo is already doing it with artist Imogen Heap’s single “Tiny Human.” So, in actuality, perhaps Jay Z should be more worried about blockchain than Spotify.

Indeed, as streaming becomes the dominant revenue source in the music market, and consumers continue to shift away from physical media and digital downloads, the pressure from artists will only increase as they seek more transparency, and a stronger ability to renegotiate their share of revenues from all sides (but particularly from labels).

On Twitter, Allen echoed this sentiment, writing that rather than demonizing streaming services, artists should look towards the hefty cut of revenue taken by labels:

For Prince, online streaming services were just the latest challenge in his complex relationship engaging with evolving digital markets. Like Bowie, Prince was a digital pioneer -- among the first to embrace the Internet’s potential to create a direct relationship with his fans. In 2001, he opened one of the first music subscription services, NPG Music Club, which was open for 5 years. In 2009, this was succeeded by lotusflow3r.com. As the Wall Street Journal describes it:

LotusFlow3r.com, resembled a galactic aquarium, featuring doodads like a rotating orb that played videos. The promise: fans who ponied up $77 for a year-long membership would receive the three new albums, plus an ensuing flow of exclusive content, like unreleased tracks and archival videos.

It was also met with a mixed reception, and a year after its launch, it went dark.

Ultimately, as the Internet came of age, Prince met it with increasing resistance. Likely, he saw his ability to assert control slipping away. He wasn’t a fan of people repurposing his work in the analog era, so why should we expect him to embrace a digital one -- where it’s far easier to remix, edit, dub and repurpose? As Mike Masnick explains, Prince became a militant enforcer of his intellectual property, who played fast and loose with the law in his litigiousness:

At one point, he even declared that the Internet is a fad, rebelling against a model that wouldn’t work on his terms:

The internet's completely over. I don't see why I should give my new music to iTunes or anyone else. They won't pay me an advance for it and then they get angry when they can't get it.

(At this point he could have styled himself “The Prince of Denial.” He even deleted his Facebook and Twitter accounts.)

Famously, Prince, via Universal Music, was responsible for the infamous “dancing baby” DMCA takedown over a video featuring Prince’s “Let’s Go Crazy” playing faintly in the background of a short clip as a toddler danced*. Ultimately our friends at EFF, who were representing Stephanie Lenz, prevailed on their fair use claim. In 2013, EFF awarded him their “Raspberry Beret Lifetime Aggrievement Award” for “extraordinary abuses of the takedown process in the name of silencing speech.”

Despite all the digital-copyright agitation Prince managed to generate in the steps he took to express his unhappiness with Internet distribution channels -- and despite his insistence, it doesn’t seem as if the Internet is “over” quite yet -- he will of course be remembered primarily for his genius as a songwriter, performer, and producer. And, also, as a visionary. Although he passed away just before the rise of virtual reality and mixed reality technologies, one can only imagine him as someone who would have embraced it. Even if imperfectly.

Ironically, given his virtuosity and lasting impact on pop music, limiting his digital distribution, and the ability of his fans to find new creative uses for his work, makes it orders of magnitude more difficult for fans to bring his music to new generations of listeners, who may never know what all the fuss about Prince was about. And that’s a shame.

* Post updated to reflect that while Prince/Universal sent the initial DMCA takedown, it was Lenz and EFF who brought the lawsuit for that takedown.

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]]>innovative, but controllinghttps://www.techdirt.com/comment_rss.php?sid=20160428/10570534304Wed, 13 Apr 2016 10:38:00 PDTLed Zeppelin 'Stairway To Heaven' Copyright Case Will Go To A Jury... Meaning Band Will Almost Certainly LoseMike Masnickhttps://www.techdirt.com/articles/20160412/12023234165/led-zeppelin-stairway-to-heaven-copyright-case-will-go-to-jury-meaning-band-will-almost-certainly-lose.shtml
https://www.techdirt.com/articles/20160412/12023234165/led-zeppelin-stairway-to-heaven-copyright-case-will-go-to-jury-meaning-band-will-almost-certainly-lose.shtmlaccused of copying others songs, and there are actually a bunch of videos on YouTube detailing examples. Here's just one:

Some of the examples do sound like pretty blatant copies, while others are, at best, homages or inspirations, rather than direct copies. Even so, it's difficult to get too worked up about these complaints. It should be pretty clear that even where the band copied others, it did so in a different way that often got much more attention to the work than anything the original version got. Either way, there have been a few new lawsuits brought against Led Zeppelin recently, despite it being decades since the band was actually a thing. A few years ago, we wrote about folk singer Jake Holmes suing Jimmy Page for copying parts of the Led Zeppelin song "Dazed and Confused." That case appears to have been settled out of court.

More recently, the estate of Randy Wolfe (aka Randy California), who was the guitarist for the band Spirit and wrote the song Taurus, sued the band over the song "Stairway to Heaven," whose guitar line is obviously quite similar to Taurus. You can definitely hear the similarities, though the chord progression is pretty basic (and the two songs are not identical).

Of course, another video comparing the two notes that both songs are actually most similar to Bouree in E Minor by Johann Sebastian Bach -- raising questions as to whether there's any legitimate copyright at all here:

Either way, federal district court judge Gary Klausner rejected a variety of claims from Zeppelin's Robert Plant and Jimmy Page and said that the case needs to go to trial in front of a jury. That's going to make things difficult for Plant and Page. As with the Blurred Lines trial last year, you see that many people freak out when they hear two songs are pretty similar and assume that something wrong must have happened. Of course, that's not how copyright law is supposed to work, but alas, that's what years of the big legacy industries brainwashing the public on copyright has resulted in.

Of course, as we've noted in the past, tons of songs have similar chord progressions that can lead to similar sounding songs. It's why there are multiple comedy routines pointing this out:

There's only so much that can be done with musical chord progressions and some work really well and lead to a lot of similar sounding songs. And that's not a bad thing. Some of them, quite likely, are inspired by others. In the Stairway to Heaven case lots of people point out that Led Zeppelin and Spirit toured together early on. So there's a bit of "smoke" that leads people to scream fire (ignoring of course, that Bach came first). But again, does this really matter? Wolfe didn't sue in the decades since the two songs were released. It was only many years later, after his death, that his estate suddenly decided to make a money-grab out of it.

What remains is a subjective
assessment of the ‘concept and feel’ of two works . . . a task no more suitable for a judge than for a
jury.

Thankfully, Klausner does reject comparisons between the performance style between the two songs, noting that that's different than the composition itself (the work that is actually covered by the copyright in question). But, again, that was also true in the Blurred Lines case and the jury more or less ignored it, because the songs sounded similar. So, again, there seems to be a good chance that Plant and Page will lose this case because a jury will think the two songs sound too similar. But sounding too similar isn't how copyright law is supposed to work.

It's a piece of audio gear, but its real appeal is purely visual. The Atmo Sfera is a new "platterless" turntable from a team of Italian designers, and boy is it nice to look at. In use, the vinyl record floats and spins on the central pivot while the sleek carbon fibre arm glides across it, and suddenly other turntables seem clunky by comparison. Of course, this design innovation isn't solely about style: going platter-free is an alternative approach to reducing unwanted vibrations in a turntable, basically taking the opposite route from the more common method of using a hefty, dense, high-quality platter. The Atmo Sfera is also a totally self-contained, ready-to-play device that doesn't require additional pre-amps and other audio gear, which can't be said for all quality turntables.

Though earbuds reign supreme for casual listeners in their day-to-day life, not everyone is willing to make that sacrifice when on- and over-ear headphones deliver such staggeringly superior sound. But those big head-cans come with downsides: they are extremely isolating, and even the most comfortable pair starts to hurt after a while. The VIE SHAIR aims to solve this with a unique "frame" design that lifts the headphones off your ears while still directing the sound where it needs to go, for the double benefit of being able to hear what's around you and not ending up drenched in ear sweat. Now, if only they could figure out how to make them roll up into a tiny ball like earbuds...

Looping is a tremendously fun digital music technique, and one that a lot of creative people have done some amazing stuff with. Usually the gear takes one of a few forms: a single pedal in the standard design of stage pedals everywhere, a multi-pedal monster, or a tabletop looping "station". None of these things do the job alone: they need to be hooked up to instruments, microphones, etc. The Loopa puts one of the most entertaining looping workflows into a single package: it's a self-contained looper microphone with on-board controls, so the entire process can be held in one hand. It's got some solid specs, too: 24-bit digital audio, up to 12-minute loops, and unlimited layers with multiple levels of realtime undo and redo. Wait until you see what beatboxers can do with something like this.

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]]>audiovisualhttps://www.techdirt.com/comment_rss.php?sid=20160409/08111834134Wed, 16 Mar 2016 14:47:54 PDTPowerman5000 Takes To Facebook To Complain About Similar Sounding Final Fantasy Song, Fans Rebut ThemTimothy Geignerhttps://www.techdirt.com/articles/20160225/09455533709/powerman5000-takes-to-facebook-to-complain-about-similar-sounding-final-fantasy-song-fans-rebut-them.shtml
https://www.techdirt.com/articles/20160225/09455533709/powerman5000-takes-to-facebook-to-complain-about-similar-sounding-final-fantasy-song-fans-rebut-them.shtml
Fans of Powerman5000, a band that reached its popularity pinnacle years back with its hit song When Worlds Collide, may already be aware that the band took to its Facebook page to complain about a new boss battle song in Final Fantasy XIV.

Really? Got to say that the level of unimaginative theft that was used in creating this music for #finalfantasyXIV is...

The song that now appears in the game came via an update from Square Enix recently. That song, which you can see in the video above, is supposedly a "straight up rip off" of When Worlds Collide. See below if you're not familiar with the song.

Are they similar? Hell yes. But it seems to me that they're similar in the same way that When World's Collide is similar to any number of Nine Inch Nails songs. It's industrial rock of the same sort. In fact, I have a feeling that if the Final Fantasy song didn't include the throaty intro before the bridge, this probably never would have triggered a response. But what it most certainly is not is any kind of blatant note for note ripoff. It's not even really that close.

And, while I'm not a fan of the genre, the fans of Powerman5000 certainly are, and it seems a great many of them are trying to figure out what the hell the band is complaining about. Some snippets of comments left on their Facebook post:

"Sorry, but no. If you guys think that song is "a straight up ripoff" of your old 1999 song, then you've seriously got a slight case of some major brain damage from playing your own shitty music too loud. They sounds completely different."

"Soken (the composer) loves metal. And if anything PM5K, you should be happy that he took inspiration from your song. It's not a ripoff, but there's influence there, and as a result of this influence, your music has now reached an MMO playerbase."

This post is basically saying every industrial metal song is the same ever. I bet I can find at least 3 Static-X and Rammstein songs that sound like When Worlds Collide. I don't need to point out that Worlds Collide also sounds like something Nine Inch Nails would have performed years prior."

And that really is only a sampling; it goes on and on from there. And these are, again, people following Powerman5000's page. They are fans of the band and fans of the genre and in a perfect position to comment on the similarities of the songs, which most seem to indicate are, "meh, maybe the composer listened to you guys once or something, but it's not a rip off."

Public shaming is a useful tool, much more so in many circumstances than going the legal route. And, to be clear, I have not seen anything to indicate that the band is preparing to go the legal route here. But the public shaming thing only works if the public, or at least your fans, agree with your premise.

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]]>your-fans-would-knowhttps://www.techdirt.com/comment_rss.php?sid=20160225/09455533709Fri, 11 Mar 2016 14:07:01 PSTMusic Licensing Shop Harry Fox Agency Appears To Be Scrambling To Fix Its Failure To Properly License SongsMike Masnickhttps://www.techdirt.com/articles/20160310/23295633867/music-licensing-shop-harry-fox-agency-appears-to-be-scrambling-to-fix-failure-to-properly-license-songs.shtml
https://www.techdirt.com/articles/20160310/23295633867/music-licensing-shop-harry-fox-agency-appears-to-be-scrambling-to-fix-failure-to-properly-license-songs.shtmlDavid Lowery's class action lawsuit against Spotify. In the end, while there was some question over whether or not streaming music services really need to get compulsory mechanical licenses for producing reproductions of songs, it seemed like the fact that such licenses are compulsory and can be obtained easily via having the Harry Fox Agency issue a "Notice of Intention" under Section 115, it seemed crazy to think that the various music services had not done that. In fact, we noted that the only way the lawsuits made any sense was if the various music services and HFA ignored this and didn't send out such NOIs. At the time, I noted that this would be a surprise, and it could mean the services were in deep trouble.

Or perhaps not a surprise... and, yes, some folks may be in deep trouble. Beyond Lowery's lawsuit, a few other similar lawsuits have been filed. Earlier this month, Tim Geigner wrote about a very similar lawsuit filed by Yesh Music against Tidal. Of course, what didn't get as much attention is that Yesh filed very similar lawsuits against a bunch of other music services as well, including Google Music, Slacker, Line Corporation (which runs Mix Radio) and Guerva (which I think is a misspelling of the music site Guvera). Yesh also sued Deezer a few months ago.

One of the key questions that came up following the reporting on all of these cases is the Harry Fox Agency's role in all of this. HFA, an organization that was set up by the publishers themselves is supposed to be responsible for managing compulsory licensing for the vast majority (though not all) of popular songwriters (remember, HFA is about compositions/publishing, not sound recordings). But it's beginning to look seriously like HFA just fell asleep on the job and didn't bother to do the one key thing it was supposed to do for all these music services: file Section 115 NOIs.

Both David Lowery and another songwriter, Ari Herstand, have recently posted examples of HFA suddenly sending them NOIs that appear to be rushed and are showing up way after they're supposed to. I rarely agree with Lowery about anything, but it's seriously looking like HFA totally fucked up here. Big time. Here's the notice Lowery received:

As Lowery notes, this NOI was sent on February 16th, 2016, but was signed by a Spotify exec who left the company in 2015, for a song that showed up on Spotify in 2011 and using an HFA address that didn't exist until 2012. Basically... it looks like HFA is rushing around trying to send out NOIs that it failed to do properly, and doing a pretty half-assed job about it. And that seems especially stupid when it comes to issuing those NOIs to the guy who is already suing over those missing NOIs.

Herstand just received a similarly late NOI from HFA for his music appearing on Apple Music. As he notes, his notice says the music should appear on Apple Music as of March 10th of 2016, but it's actually been there since Apple Music launched last summer. He also notes this is the first NOI he's ever received from HFA, while he has received plenty of NOIs from the much smaller HFA competitor Music Reports "on a regular basis."

So, given all that, it sure looks like HFA didn't do the one thing that it was supposed to be doing all along, and that's... going to be bad news for someone. The big question is who? All of the lawsuits have been against the various music services, but without being privy to the contracts between HFA and the music services themselves, I'd be shocked if they didn't include some sort of indemnity clauses, basically saying that if music isn't licensed because of HFA's own failures to do its job that any liability falls back on HFA.

And, if that's the case, HFA could be on the hook for a ton of copyright infringement. If it's true that it's basically been ignoring the fairly simple NOI process for a lot of artists, then that's going to be a major scandal -- but one that seems a lot harder to pin on the music services themselves. They went to HFA and hired the company to handle mechanical licenses. There may be more going on behind the scenes here, but at a first pass, based on what appears to be happening, HFA may be in some seriously deep trouble.

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]]>well,-look-at-that...https://www.techdirt.com/comment_rss.php?sid=20160310/23295633867Sat, 27 Feb 2016 09:00:00 PSTAwesome Stuff: Play & ListenLeigh Beadonhttps://www.techdirt.com/blog/innovation/articles/20160227/08041433730/awesome-stuff-play-listen.shtml
https://www.techdirt.com/blog/innovation/articles/20160227/08041433730/awesome-stuff-play-listen.shtml
More often than not, when dealing with music-related stuff in this column, we've focused on music creation tools. But this week, we've got a pair of crowdfunded products for music and audio lovers.

Shameless Self-Promotion: As you may already know, Techdirt is raising money for some of its own awesome stuff right now, via a crowdfunding campaign on Beacon to support our reporting on the vital encryption debate. Check it out, and help make sure there's an anti-fearmongering voice of reason in this all-important fight.

In retrospect, the convergence of mobile phones and portable music players was inevitable — but that doesn't mean the standalone player is entirely dead. iPod sales have been dropping and Apple has been moving away from the product, but not everyone is thrilled with that, as some still prefer a separate device (anecdotally: my girlfriend still uses her Shuffle for most listening, and just this week a friend of mine was pleased as punch to have tracked down a decently-priced iPod Classic on Craigslist). Now, the rise of streaming music has even further reduced your non-phone options for music listening, and that's where the Mighty steps in. Physically, it's more or less a clone of an iPod Shuffle, but it works by first pairing with your smartphone via Bluetooth or WiFi and storing 4GB of offline music from Spotify. That's a first as far as I know, and while I'm sure lots of people will opt to simply stick with their phones, there are at least 1500 people (so far) who would very much like this option.

Of course, in many ways, a music player is only as good as the headphones you plug into it — and this is one of the nicest pairs of headphones around. Admittedly though, the appeal of the OSSIC X headphones is more for gamers, VR users and surround-sound movie watchers, because that's what makes them special: 3D sound more customized and advanced than any solution to date. There are lots of 3D sound headphones out there, but getting a truly good pair can be tough — not only is there a vast range of quality requiring a lot of pre-purchase research, there's the fact that everyone's ears are a little different and the experience won't be consistent for all listeners. That's where OSSIC X steps in: these headphones use head tracking and "anatomy calibration" to customize their output to an individual user. They adjust the 3D sound delivery based on the size of your head and torso and the unique shape of your ear, then use the built-in movement tracking to keep sounds fixed at a specific point in space even as you make minor movements with your head. The result is 3D audio with a greater degree of accuracy and immersion than any standard set of Dolby cans.

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]]>a-natural-matchhttps://www.techdirt.com/comment_rss.php?sid=20160227/08041433730Tue, 16 Feb 2016 09:21:33 PSTSony Music Issues Takedown On Copyright Lecture About Music Copyrights By Harvard Law ProfessorMike Masnickhttps://www.techdirt.com/articles/20160214/08293233599/sony-music-issues-takedown-copyright-lecture-about-music-copyrights-harvard-law-professor.shtml
https://www.techdirt.com/articles/20160214/08293233599/sony-music-issues-takedown-copyright-lecture-about-music-copyrights-harvard-law-professor.shtmlMathias Schindler, it appears that a copyright lecture about music copyright done by famed copyright expert and Harvard Law professor William Fisher has been taken down due to a copyright claim by Sony Music.

Fisher is well-known in copyright circles and has long advocated for a major reform to copyright to effectively spread a compulsive license to other uses, effectively legalizing file sharing, but with systems in place to still have artists paid. He's detailed versions of this proposal in his book, Promises to Keep: Technology, Law, and the Future of Entertainment. That said, this takedown appears to have nothing to do with that whatsoever.

The lecture itself appears to be a part of his online course, CopyrightX, which is available under a Creative Commons Attribution 4.0 License. Thankfully, on the CopyrightX website, there are downloadable versions of the lectures, so I was able to download and watch the full lecture to see what the takedown was about. If you want to follow along at home, the lecture is the third one in section 3. Section three goes into detail on the "Subject Matter of Copyright," and the third lecture is about... "Music." You can download it here.

The lecture itself is 24 minutes long, and the vast majority of it is dedicated to creating and explaining this chart, which shows (partially) the messy nature of music copyright licensing today (as a side note, I really appreciate that Fisher is so thorough as to include under the table "payola" as a part of this chart):

However, towards the very end of the lecture, Fisher does play a few sound recording clips to demonstrate a point around cover songs and compulsory licenses (along with his personal opinions on the quality of Stevie Ray Vaughn v. Jimi Hendrix). The clips played are all versions of the Jimi Hendrix classic song Little Wing. You've heard it. In the lecture, Fisher plays approximately the first 45 seconds of the song, from 17:44 in his lecture to 18:31. Then, to demonstrate specific points about cover songs, he plays approximately 15 seconds of a cover by Santana and Joe Cocker. Then about 35 seconds of a version by Stevie Ray Vaughn, and finally about 40 seconds of a version by The Corrs. By my count, a little over 2 minutes of the entire 24-minute video are music clips.

Let's be clear here: this is unquestionably fair use. It's not entirely clear to me if this was an explicit takedown or merely a YouTube ContentID match, but either way there is no reason for YouTube to have allowed this to be blocked. If you run through the four factors test of fair use, all four suggest that it's fair use. The purpose and character of the use is clearly for educational purposes, which the fair use part of the law explicitly calls out as an example of fair use. The "nature" of the work is a song, but that seems to have little bearing here on the fair use question. The amount and substantiality of the portion taken was fairly small -- basically just enough for Fisher to make his point showing the differences between the songs and how that applies to the compulsory licenses issued for cover songs. And, finally, the effect of the use upon the potential market is nil. No one is listening to Fisher's lecture as a "replacement" for going out and getting the Hendrix song, or any other version of Little Wing. And I don't think there's a huge "market" in "licensing music to copyright lectures."

In fact, considering how frequently we hear the RIAA and other copyright system supporters (especially within the recording industry) arguing that what the world really needs is better education on copyright issues so that the public better understands it, it seems particularly stupid to issue a takedown over a free lecture explaining music copyright. But, of course, no one ever suggested that the recording industry is particularly intelligent in how it goes about fighting its peculiar war.

This story is reminiscent of when Warner Music issued a DMCA takedown on a presentation by another famed Harvard Law professor, Larry Lessig. Similar things have happened a few times to Lessig, including one case where Lessig sued in response, seeking a declaratory judgment of non-infringement along with damages under DMCA 512(f), which forbid "misrepresentations" in filing DMCA notices. That case eventually settled, with the record label (an Australian label called Liberation Music) paying a sum of money that went to the EFF. It's unclear what Fisher will do in this situation, but I imagine that as this story begins to get attention, both Sony Music and YouTube may want to reconsider the original move to take down the video.

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]]>getting metahttps://www.techdirt.com/comment_rss.php?sid=20160214/08293233599Fri, 5 Feb 2016 09:27:00 PSTDavid Bowie's Legacy On Copyright And The Future Of MusicMike Godwin and Zach Graveshttps://www.techdirt.com/articles/20160204/17585333527/david-bowies-legacy-copyright-future-music.shtml
https://www.techdirt.com/articles/20160204/17585333527/david-bowies-legacy-copyright-future-music.shtml
Amid the steady stream of "hot takes" the past few weeks on the legacy of the late great David Bowie, The Washington Post's Robert Gebelhoff dug up some of the rock legend's contrarian views on copyright, if only to rebuke them thoroughly.

Gebelhoff's piece cited a 2002 interview Bowie gave to The New York Times in which he prophesied: "I'm fully confident that copyright...will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing…It's terribly exciting."

Exciting though it may have been, Bowie's prediction obviously has not come to pass, for which Gebelhoff says we should be thankful. In his piece, he notes that strong copyright laws "play an essential role in our creative economy – and have done so for centuries." He cites as evidence a recent Stanford University/NBER study on how differing laws in Italian city-states led to more operas being produced where copyright was protected.

Bowie has long been an innovator and music visionary, experimenting with early ways to use the Internet to "cybercast" concerts and connect with fans. But it's important that Bowie wasn't necessarily seeking the death of copyright (after all, he used it to make a living). Instead, he was paying heed to what digital media already had done to revolutionize copyright-centered industries.

What he got right was detecting traditional copyright industry's anxiety – the same anxiety that has led them to push successfully for copyright terms to be extended by nearly 580 percent over the last 200 years. Mickey Mouse famously has enjoyed several retroactive copyright term extensions since Walt Disney's death, though Walt has yet to take advantage of this added incentive.

So why would Bowie, whose fortune and fame owed so much to the music industry, be excited about the end of copyright? The answer is straightforward: as a working, successful musician and producer, he knew as well as anyone that unlimited copyright protection could hinder creation, as well as remunerate it. If you're a fan of Bowie's "Young Americans," you know that part of its power as a song derives directly from its unembarrassed quotation of the Beatles song "A Day in the Life."

While copyright didn't disappear in the decade since Bowie's interview, Bowie was in many ways right about the impending shakeup of the industry. More and more consumers, particularly millennials, are listening to their music on demand through a streaming subscription, rather than purchasing copies a la carte. Remix has become a central technique for new creativity. And heavy-handed copyright can get in its way. Look, for instance, at what future presidential candidate Kanye West did with Ray Charles' "I Got a Woman." Bowie's vision that "music itself is going to become like running water or electricity" turned out to be pretty accurate.

This trend has led to sharply declining revenues from physical sales (except for vinyl, which is doing fine, thanks to hipsters) and a steadily increasing share for streaming. Digital downloads are still popular and continue to represent a major revenue source for now. As physical formats have fallen out of favor, as Bowie perhaps foresaw, the industry experienced a period of sharp disruption.

The result has been not just depressed global revenues, but also a whole apparatus of production, distribution and retail falling away. As a 2015 study by Midia observed, the narrative of "music industry decline is a label phenomenon." Which echoes what Bowie saw coming in 2002: "I don't even know why I would want to be on a label in a few years, because I don't think it's going to work by labels and by distribution systems in the same way."

Of course, the role of our copyright system is not to protect established industries from disruption. Policymakers shouldn't protect the record store from Apple or the bookstore from Amazon. Our nation's founders gave Congress a mandate to use copyright to "promote the Progress of Science and useful Arts." That is, to provide the carrot to spur artistic creation. If we take copyright "incentives" too far, they can undermine artistic freedom by imposing limits on other forms of creative expression and uses of tangible property.

Even the opera study Gebelhoff cites in his piece acknowledges this, as its authors write that "there is no clear evidence" that copyright extension beyond the author's life span creates meaningful incentives. In fact, they suggest it has little effect "beyond the first five years." In an article about the study, New York University law professor Christopher Jon Sprigman notes that: "[this] conclusion is particularly important because our contemporary debate is usually not whether to have copyright at all, but rather whether to extend already very long copyright terms."

Bowie was wrong that copyright would end, but he was right that copyright as we know it is under threat. Its foundation, built for an analog age, increasingly struggles to function in the digital one. And its market, warped by decades of heavy-handed government intervention and industry carve-outs, doesn't know how to operate freely anymore.

That's why substantial reforms will be inevitable. As Congress slowly moves in that direction, it should be mindful of this lesson: stronger copyright laws don't automatically incentivize more creative freedom. In fact, they often come at its expense.

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]]>exciting-times,-if-you're-looking-forward,-rather-than-backhttps://www.techdirt.com/comment_rss.php?sid=20160204/17585333527Tue, 26 Jan 2016 10:39:14 PSTGuitar Hero YouTuber Sings Acapella Version To Get Around ContentID Takedowns... Probably Is Still Violating Copyright LawMike Masnickhttps://www.techdirt.com/articles/20160125/17204033417/guitar-hero-youtuber-sings-acapella-version-to-get-around-contentid-takedowns-probably-is-still-violating-copyright-law.shtml
https://www.techdirt.com/articles/20160125/17204033417/guitar-hero-youtuber-sings-acapella-version-to-get-around-contentid-takedowns-probably-is-still-violating-copyright-law.shtmlGuitarHeroFailure (misleading, because the guy's actually good at the game) tried to get around YouTube ContentID takedowns on one of his Guitar Hero videos (of Ozzy Osbourne's "Bark at the Moon") by singing an acapella version of the song over it. The overall effect is really quite amazing. Watch the video (and don't miss his, um, "variation" at the very end) below:

The guy claims, in a separate video that he wasn't really trying to comment on copyright law (he actually says "YouTube's copyright laws," which, you know, aren't actually a thing). But, no matter what it is commenting on it. He notes that he was really proud of how well he did in that particular game, and was disappointed that it got taken down by YouTube.

But, even if he didn't mean for it to be a comment on copyright law, it absolutely is. But here's the craziest part. It's likely that his new video also violates copyright law. Because, remember, when it comes to music licensing in particular, copyright law is insane. There are multiple licenses that you need. There's one for the sound recording -- and in this case, he doesn't have to deal with that one. But, if you're doing a cover song, you need a mechanical license for the composition of the song. And then, the fact that it's been put on a video raises a whole separate issue, which is the need for a totally different license called a synch license, for when you use a composition with a video.

Of course, YouTubers rarely (i.e., basically never) get such licenses at all, and it's mostly ignored by everyone. But that doesn't mean it will always be. And, again, that highlights the absolute insanity of music licensing these days. People are doing stuff that clearly is not taking away anything from the market for the original music, but because of the messy, patchwork setup of copyright laws and music licensing, it's almost impossible to be fully compliant no matter what you do.

And don't even get me started on the copyright questions raised by this other video in which someone took GuitarHeroFailure's acapella and synched it to the original Ozzy song. Because, really, there aren't enough hours in the day to analyze that mess...

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]]>because-copyright-law-is-fucked-uphttps://www.techdirt.com/comment_rss.php?sid=20160125/17204033417Fri, 22 Jan 2016 10:37:40 PSTSinger Sues Google For Not Asking Her Permission To Use A Licensed Song In Its Cell Phone CommercialTim Cushinghttps://www.techdirt.com/articles/20160121/15335233399/singer-sues-google-not-asking-her-permission-to-use-licensed-song-cell-phone-commercial.shtml
https://www.techdirt.com/articles/20160121/15335233399/singer-sues-google-not-asking-her-permission-to-use-licensed-song-cell-phone-commercial.shtmlDarlene Love, the voice on the Phil Spector-produced hit "He's A Rebel," is suing Google and its ad producer, 72 & Sunny, for violating her publicity rights by using a song she recorded in one of its ads without her permission.

The lawsuit seems to revolve around California's much-maligned "right of publicity" law, which allows plaintiffs to sue entities for using pretty much anything about them, rather than just for bog standard copyright infringement.

That's going to be key because it seems clear Google cleared the rights to use a song of hers in its Nexus ads. That would just leave the extra "permission" Love feels she's been screwed out of: the "right" to block Google from using a legally-licensed track.

A voice does not end up in a commercial advertisement by accident. Rather, a number of people are involved in the creation of commercials. The voice of a famous performer, singing a famous song is selected for the express purpose of trading on the performer’s goodwill. Defendants consciously and deliberately selected Love’s vocal performance of It’s a Marshmallow World for their commercials.

However, Defendants refused to take any steps to obtain Love’s consent and had no reason to believe she had or would consent to such use. Instead, Defendants took deliberate measures to evade contacting her or obtaining her permission.

Love's voice was used, as it was part of the licensed track. Her goodwill remained where it always was -- loaded like a spring trap, apparently. She accuses Google of deliberately using a non-union ad producer to ensure her union-granted "rights" (whatever they are…) were routed around.

An honest company, doing business in good faith, would not attempt to deprive Love of the benefits of the union protection and would have engaged a SAG-AFTRA affiliated advertising agency so that the performer (and the background singers) would receive at minimum, the union-mandated benefits.

Defendants actions were despicable and in conscious disregard of Love’s rights. They turned her into an involuntary pitchman for products of dubious quality. They created a commercial that falsely implied to the public that Love had endorsed Google’s products.

That's a stretch. It's obvious Google chose the song for its lyrics (advertising a new phone containing its "Marshmallow" version of the Android operating system), rather than for Darlene Love's $75,000-worth of "goodwill."

Love gets her shots in at the nationally-acclaimed ad agency as well, claiming it colluded with Google to screw her out of something the lawsuit fails to specifically name. (But apparently worth $75,000+)

Google engages in anti-labor advertising practices and in an effort to harm Love, hired Sunny, a scab shop that utilizes recordings of artists created under the protection of collective bargaining agreements, without themselves becoming signatories and complying with the union-mandated obligations for the reuse of phonograph records in commercials.

[...]

Google’s conduct was so loathsome that it intentionally hired a disreputable non-union affiliated advertising company and the two of them deprived Love of her union protections, all to enrich themselves at her expense.

As you can see, some parts of the lawsuit read like someone's emotional blog post and -- I can't state this enough -- there are no accusations in the filing that Love did not receive compensation for the licensed use of her work. The agreement she cites as the basis for her beef with Google and its "scab" ad agency says nothing about seeking an artist's permission. It only notes they may be entitled to an additional, separate royalty. Nowhere in the suit does Love claim she did not receive the royalties she was entitled to. Instead, she's trying to use a bad law to extract $75,000 from Google simply because if they'd asked if she would like to be in its ad, she would have said no.

Can she win this? Anything's possible. The unauthorized use of someone's likeness -- which includes their voice -- can be considered a violation of the right of publicity under the local law. There's a good reason why she's brought this lawsuit in California, rather than New York, where she lives and Google has an office. In California, her suit isn't pre-empted by federal law, which means she can use the friendlier local law to pursue damages.

But she'll have to make a stronger case that Google intentionally traded her goodwill for thousands of dollars -- rather than simply licensed a song with "marshmallow" in the lyrics. It really seems like her beef should be with her union for not ensuring her the chance to reject the use, rather than Google, which apparently paid the licensing fees and handled everything correctly on its end of the deal.

These talking machines are going to ruin the artistic development of music in this country. When I was a boy--I was a boy in this town--in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. Today you hear these infernal machines going night and day. We will not have a vocal chord left. The vocal chords will be eliminated by a process of evolution, as was the tail of man when he came from the ape. The vocal chords will go because no one will have a chance to sing, the phonograph supplying a mechanical imitation of the voice, accompaniment, and effort.

And, of course, basically every other technological innovation was a threat of some sort. The radio was supposed to kill music. "Home taping is killing music" was a slogan! The RIAA undermined digital tapes and tried to limit CDs. It sued over the earliest MP3 players. It's sued countless internet companies and even music fans.

Through it all, the refrain is always the same: if we don't do this, "music will go away."

But, of course, throughout it all, music only expanded. In the first decade of the 21st Century, more music was recorded than all of history combined, and it's likely the pace has increased over the following five years as well.

And because of that, we've started to hear a new refrain from the same folks who insisted before that music was at risk of "dying" because of new technologies: that maybe there's more music, but it's clearly worse in quality. Some of this can be chalked up to the ridiculous pretension of adults who insist that the music of their youth was always so much better than the music "the kids listen to nowadays." But plenty of it seems to be just an attack on the fact that technology has allowed the riff raff in, and the big record labels no longer get to act as a gatekeeper to block them out.

However, as pointed out in an article in The Age down in Australia, not only is music doing phenomenally well these days, but a recent study suggested that the quality of music continues to increase as well. Now, obviously, quality is a subjective thing, so it's difficult to "measure," but here's what the report noted:

Yet all these years on we are still surrounded by music. It follows us throughout a day from our bedside to our commutes to our earphones at work to our drive home to settling into bed.

And an astonishing amount of it is new. A decade after the arrival of file sharing, US economist Joel Waldfogel charted what had happened in a paper called Bye, Bye, Miss American Pie? The Supply of New Recorded Music since Napster.

There is no doubt that recording companies are making less money since file sharing, he says. But that doesn't necessarily mean they are making less music, or even less good music.

Assembling data on the quality of songs from the "all-time best" lists compiled each year by Rolling Stone and other magazines he finds that the albums regarded as good tend to be recent, and increasingly so as the internet age wears on.

The good new ones aren't even by old artists. He says around half of the good new albums are by artists who only started recording since file sharing. It has neither killed new music, nor frightened people away from beginning to make music.

Now, there are reasonable quibbles with this methodology. You can say that of course newer lists of "all time" best music will weigh heavily more recent favorites, even if they might not truly last the tests of time. But, at the very least it does suggest that plenty of people (myself included) are still finding a ton of new music to listen to that we find to be just as good, if not better, than music from decades ago.

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]]>panic-panic-everywherehttps://www.techdirt.com/comment_rss.php?sid=20160110/23460433294Mon, 11 Jan 2016 10:36:00 PSTDavid Bowie Wasn't Just An Incredible Music Visionary, But An Internet & Business Model Visionary TooMike Masnickhttps://www.techdirt.com/articles/20160111/07442933297/david-bowie-wasnt-just-incredible-music-visionary-internet-business-model-visionary-too.shtml
https://www.techdirt.com/articles/20160111/07442933297/david-bowie-wasnt-just-incredible-music-visionary-internet-business-model-visionary-too.shtmlmusic visionary, but he was similarly visionary about the music business and the internet as well.

All the way back in 1996, he was the first major musician to release music only on the internet, launching the single for "Telling Lies" as a direct download off of his website, and announcing it in an online chat session. Yes, nearly 20 years ago, Bowie embraced internet distribution for his music.

Then, in 1997, he went way beyond basically any other music business model experiment by issuing Bowie Bonds, creating a financial instrument that was backed by the royalties from his music, without losing control of the actual music itself.

That same year, he also became the first major musician to "cybercast" a live concert online. Other musicians had tried similar things around that time, but Bowie was by far the most well-known (though the technology basically sucked for all of them, including Bowie).

Just a year later, in 1998, David Bowie launched BowieNet, his very own internet service provider (ISP), saying:

If I was 19 again, I’d bypass music and go right to the internet.

Again, that was 1998 -- the same year that Google was founded (and a little site called Techdirt first came online too, but we'll leave that aside for now).

There's so much good stuff in that interview. He talks about how he doesn't view himself in the music industry at all any more because of the way the industry works, and how much he just wants to do his own thing. And the internet is incredibly exciting to him. He talks about how he got into music because it was a rebellious thing to do, but then:

It had a sort of 'call to arms' feeling to it. This is the thing that will change things. It is a dead-dodgy occupation to have. It still produced signs of horror from people if you said 'I'm in rock and roll.'... Now it's a career opportunity. And the internet carries the flag of being subversive and possibly rebellious and chaotic and nihilistic.... Forget about the Microsoft element. The monopolies do not have a monopoly....

... I like the idea that there's a demystification process going on between the artist and the audience....

... I don't think we've even seen the tip of the iceberg. I think what the internet is going to do to society -- both good and bad -- is unimaginable. I think we're on the cusp of something exhilarating and terrifying....

... The actual context and the state of content is going to be so different to anything we can envisage at the moment – the interplay between the user and the provider will be so in simpatico it's going to crush our ideas of what mediums are all about.

... Artists like Duchamp were so prescient here – the idea that the piece of work is not finished until the audience comes to it and adds their own interpretation, and what the piece of art is about is the grey space in the middle. That grey space in the middle is what the 21st century is going to be all about.

That same year, Bowie also launched BowieBanc, an online banking operation, that offered ATM cards and checks (with Bowie's image on them), exploring new ways of connecting with fans and building his own brand online.

His deal with Sony is a short-term one while he gets his label started and watches the Internet's effect on careers. ''I don't even know why I would want to be on a label in a few years, because I don't think it's going to work by labels and by distribution systems in the same way,'' he said. ''The absolute transformation of everything that we ever thought about music will take place within 10 years, and nothing is going to be able to stop it. I see absolutely no point in pretending that it's not going to happen. I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing.''

''Music itself is going to become like running water or electricity,'' he added. ''So it's like, just take advantage of these last few years because none of this is ever going to happen again. You'd better be prepared for doing a lot of touring because that's really the only unique situation that's going to be left. It's terribly exciting. But on the other hand it doesn't matter if you think it's exciting or not; it's what's going to happen.''

It hasn't totally played out the way he expected, but there's no doubt that Bowie's ability to be a visionary wasn't merely limited to the incredible music he wrote, performed and recorded, but to the internet and music/internet business models as well.

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]]>riphttps://www.techdirt.com/comment_rss.php?sid=20160111/07442933297Wed, 11 Nov 2015 08:32:52 PSTStarting From Next Year, China Wants Music Services To Vet Every Song Before It Goes OnlineGlyn Moodyhttps://www.techdirt.com/articles/20151110/09125232776/starting-next-year-china-wants-music-services-to-vet-every-song-before-it-goes-online.shtml
https://www.techdirt.com/articles/20151110/09125232776/starting-next-year-china-wants-music-services-to-vet-every-song-before-it-goes-online.shtml
Techdirt has reported on so many different aspects of China's online clampdown, that it's natural to wonder if there's anything left to censor. Surprisingly, the answer is "yes", according to this Tech in Asia post:

all Chinese companies operating any sort of internet music or streaming platform will be required to set up internal censorship departments. These departments will have to approve all songs before they're posted online, in strict accordance with the Ministry [of Culture]'s guidelines for permissible song content. Censors will also have to create and maintain a "warning" list and a blacklist for content creators and uploaders whose songs repeatedly fail to pass inspection.

As the article explains, online music companies are expected to bear all the costs of setting up censorship departments and training staff to vet all the songs, and will be punished if they fail to implement the new policy properly. At least some will have had practice, since a similar approach has been applied to online posts for some time. Tech in Asia has the following thoughts on how effective the censorship is likely to be:

The Ministry’s decade-long console ban was very poorly enforced, as have been most of its bans on video games. But online games have been easier for the Ministry to restrict because they typically require China-based servers, and the [Ministry of Culture] might similarly find that it has an easier time genuinely restricting online music than it has policing the offline music.

That seems likely. The real question raised by this latest move is: anything left to censor, or have you finished now, China?

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]]>silence-is-goldenhttps://www.techdirt.com/comment_rss.php?sid=20151110/09125232776Sat, 24 Oct 2015 09:00:00 PDTAwesome Stuff: MIDI Where You Need ItLeigh Beadonhttps://www.techdirt.com/articles/20151024/08030532614/awesome-stuff-midi-where-you-need-it.shtml
https://www.techdirt.com/articles/20151024/08030532614/awesome-stuff-midi-where-you-need-it.shtml
The "one-man band" has come a long way. What used to require an elaborate (and heavy) suit of instruments can now be accomplished with central instrument and a handful of digital devices — but this we're looking at something that takes yet another step: the ACPAD, an "electronic orchestra" for your acoustic guitar.

The Good

The standard approach for a guitarist who wants to incorporate the endless world of digital music into a live performance involves either an elaborate setup of looping and effects pedals, an iPad, or both — but the ACPAD puts such capabilities right on the guitar itself. It's an extremely thin, adhesive control board that attaches to the face of the guitar so it's easy to rapidly trigger controls between strums. It connects to a computer either via USB or wirelessly, and communicates using the MIDI protocol so it works with all standard music software (Ableton being a popular choice) and all the buttons and controls can be assigned to custom functions. It's not cheap, but that speaks to the quality of its construction, especially the buttons that manage to be highly pressure-sensitive despite the device being so thin (it's easy to envision a much cheaper version of the ACPAD that is too clunky and unresponsive to be practical). The possibility for experimental guitarists, who are always pushing the envelope of sound and song construction, are huge.

The Bad

This isn't exactly a "bad" thing, but it's an important thing to keep in mind: as with all MIDI devices, the capabilities of the ACPAD come down to what you're plugging it into. With a fast computer and good music software, it's a powerhouse; without those things, it's a very thin brick. The digital music world commonly splits itself up into two camps: those who focus on using MIDI to run everything through a central computer, and those who prefer standalone digital devices like pedal-based looping stations. The ACPAD is definitively a tool for the former.

The Complimentary

Apart from a computer running Ableton or something similar, there's another piece of the puzzle that isn't required but unlocks far greater capabilities for the ACPAD: a MIDI pickup for the guitar (which converts your acoustic string vibrations into additional MIDI signals) or a separate microphone piping the guitar's sounds into the computer. With one of those things, the ACPAD does more than just bring additional sounds like drums and samples under your control — it becomes a fully-functional effects and looping station, letting you program the buttons to modify the guitar's sound on the fly, or capture and layer multiple recorded loops.

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]]>strum-awayhttps://www.techdirt.com/comment_rss.php?sid=20151024/08030532614Thu, 22 Oct 2015 23:22:57 PDTNo, Including Stream-Safe Music Options In Games Isn't The Solution To Game-Stream TakedownsTimothy Geignerhttps://www.techdirt.com/articles/20151016/06490232557/no-including-stream-safe-music-options-games-isnt-solution-to-game-stream-takedowns.shtml
https://www.techdirt.com/articles/20151016/06490232557/no-including-stream-safe-music-options-games-isnt-solution-to-game-stream-takedowns.shtml
Streaming and video games are becoming quite a thing, as you likely know. Once met with rebukes such as "Why would anyone want to watch other people play video games?", game-streaming has gotten very large, very fast, such that there are now several outlets one can go to to see live streams and on-demand streams of games. But because, to bastardize a Christopher Hitchens book title, permission culture poisons everything, game streaming is finding itself having to leap over a copyright hurdle in the form of music within games. One solution, employed by the popular Twitch, was to simply silence any video in which a game's music could be heard. This method is patently ridiculous, of course, as a majority of games do indeed have music and silent streams are largely worthless in terms of entertainment value. But at least Twitch's move had the unintended consequence of highlighting just how burdensome our permission culture has become, in knee-capping game-streams, which are ultimately useful to game-makers, in favor of copyright protection. It's easy to see how everyone loses and why everyone loses when Twitch streams are silenced, in other words.

I wrote (and spoke) about Concrete Jungle a bit a few weeks ago, but feel like pointing this out again: for all the game’s good points, one of its best inclusions is a seemingly harmless little checkbox at the bottom of the game’s settings menu. There it is. “Stream-Safe Music”. For starters, it’s a helpful little explainer as to why so many videos get taken down! Some people may not realise that, when licensing music, sometimes different rights apply to YouTube as do the game itself. So while it’s cool for a game to include music, it might not be cool for a video of the game to be on YouTube.

More importantly, though, it’s a one-click workaround to the problem. Tick that box and only the music that’s 100% cool to be played on YouTube will be played while you record/stream.

But that's the thing: it isn't a workaround to the problem at all, assuming the problem we're talking about is a complicated series of licensing schemes that ultimately disappear content, generate little to no revenue (as evidenced by Twitch simply turning the sound off), and stem from a permission culture that is entirely out of control. What creating stream-safe music options does is ignore the problem entirely. Far from creating any kind of resolution, actively pimping an option that requires game-makers and streamers to twist themselves into a pretzel to avoid DMCA takedowns is cheering for unproductive effort. Nobody benefits from this, and everyone loses. Game-makers lose because it makes streaming their games require more effort, which means some streamers simply will give up therefore decreasing the exposure the game could receive. Music makers lose because most of their music will never be heard on the stream, either because videos will be silenced, DMCA'd, or because everyone will be using the stream-safe option when they stream. And gamers lose because, as much as in film, music plays a huge role in the atmosphere of many video games.

What sounds like a reasonable attempt to get around the stupidity of copyright effecting game streams is instead an unreasonable request that everyone ignore the actual problem and allow it to fester. That isn't how you fix things. It's how you allow a problem to become worse.